### No. 14239 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979

ROSEMARY F. CATTEYSON, Claimant and Respondent,-vsFALLS MOBILE HOME CENTER, INC., Employer, and GLACIER GENERAL ASSURANCE COMPANY, Defendant and Appellant.

Appeal from: Workers' Compensation Court Hon. William E. Hunt, Judge presiding. Counsel of Record: 

### For Appellant: Jardine, Stephenson,Blewett and Weaver, Great Falls,

Montana For Respondent: Barry Olson, Great Falls,Montana

Submitted on briefs: April 12, 1979 Decided: 

## AUG

# -9 

## 1979Mr. ~ustice Gene B. Daly delivered the Opinion of the Court. FallsMobile Home Center, Inc., and Glacier General Assurance Company, defendants, appeal from themodified conclusions of law and judgment dated February 27, 1978, entered by theWorkers' Compensation Court. Respondent claimant was atthe 

### timeof the industrial accident employed by FallsMobile Home Center, Inc. Glacier General Assurance Company was employer's industrial accident insurer. The Workers' Compensation Court by 

### itsjudgment decided that claimant 

### was entitled to temporary total disability payments under section 39-71-701 MCA, from November 20, 1974, toOctober 27, 1976, and temporary totalpayments from October 28, 1976, toMarch 3, 1977, for the failure of the 

### carrier tonotify theWorkers' Compensation Division of 

### its intention tounilaterally terminate benefits. Section 39- 71-609 MCA. The court further held that claimant suffered 10percent permanent partial injury under section 39-71- 116(12)MCA, entitlingher tobenefits pursuant to section 39-71-703 MCA. Finally, the court awarded claimant attorney feespursuant to section 39-71-612 MCA, inthe amount of $1500. Shortly before 4:00 p.m. on November 20, 1974, claimant

was injured inan automobile accident as she 

### was heading north on 13thStreetNorth inGreat Falls, Montana. Atthe 

### timeof the accident, claimant had two jobs--one as a handy person forFallsMobile Home and one as a dispatcher for Black and White Cab. There 

### was some dispute as towhat claimant was doing atthe 

### timeof the accident. The carrier contended she was on her way toher job atBlack and white Cab; claimant contended, and theWorkers' Compensation Court found, that she had been running an errand for Falls ~obile Home.

### On December 5, 

### 1974, claimant filed for benefits and the compensation carrier for Falls Mobile Home began paying her benefits. Later, and while compensation benefits were being paid, the carrier notified claimantby letter that compensation would be discontinuedwhen her doctor released her to work. Temporary total benefits were paid until June 25, 1976, when claimant was released forwork. The payments were then discontinued and a "CompensationAdvice Form"was sent to claimant on July 22, 1975, and forwarded to the Workers' Compensation Division. Thereafter, the parties corresponded for a period of ten months in an effort to determine whether claimanthad suffered any permanent disability. Later claimant filed a petition with the Workers' Compensation Court for a hearing. Prior to the hearing, the carrier discovered that claimant may have been on her way to her second job at the time of the accident. It therefore withdrew its settlement offers and chose to defend on the ground that claimant had not suffered a compensable injury. TheWorkers' Compensation Court found in favor of claimant, and the carrier appeals. Initially we are asked to determine whether the evidence supports the Workers' Compensation Court's conclusion that the employee was injured in an industrial accident and,

as a result,was permanently or partially disabled. We find that it does. While there was disputed evidence as to what claimant

was actually doing at the time of the accident, the workers' CompensationCourt found that shewas running an errand for FallsMobile Home. There is sufficientevidence in the record to support this finding:"Whether thisCourt agrees 

### is of no moment. Since credible and substantial evidence appears inthe record in support of theWorkers' Compensation Court, 

### we arebound by 

### its decision on the facts." McGee v. Bechtel Cor~. (1979) Mont. 

## , 595 P.2d 1156, i158- 59, 36 St.Rep. 220, 224. There is also sufficient credible evidence to support a conclusion that claimant 

### was permanently partially disabled and entitled tobenefits under section 39-71-703 MCA. Next 

### we are asked todecide whether the Workers' Compensation Court erred inholding that the carrier had unilaterally terminated claimant's benefits and that termination

was improper. In support of 

### its conclusions of law, the court cited Clark v. Hensel Phelps Construction Company (1977), Mont. 

## , 560 P.2d 515, 34 St.Rep. 61. InClark, the issue presented tothisCourt was the necessity of giving claimant written notice and acquiring approval of the Division of Workers' Compensation prior tothe termination of benefits. The Court found the controlling statute tobe section 92-615, R.C.M. 1947, now section 39-71-609 MCA, which originally read: 

# ".

. . If the insurer determines toinitially deny the claim, orafter a claim has been accepted, terminates biweekly compensation benefits, it may do soonly a£ 

### ter £ifteen (15) days written notice tothe claimant and the division and afterwritten approval of the division." This section has sincebeen amended and no longer requires written approval of the Division. Section 39-71- 609 MCA. This amendment, however, has no effecton the Clark rule. The issue inClark was one of firstimpression in this state. Inreaching our decision 

### we looked toXhode Island which had interpreted a statute similar toour present day section 39-71-609 MCA, and held:

# ".

. 

# . if the employer does attempt tounilaterally terminate the payment of benefits such attempted termination 

### is ineffective. The employer remains liable for the payment of benefits until the termination 

### isaccomplished by following the statutory notice provision." Clark, 560 P.2d at 517. Here, the carrier advised the employer and the Division

some 27 days after termination and not 15days before as 

### is required by law. The Workers' Compensation Court was correct in

### its application of theClark rule in this case. Once it 

### has been determined that section 39-71-609 MCA 

### and Clark have been violated, the carrier "remains liable for the payment of benefits until the termination 

### is accomplished by following the statutory notice provision.

### " Clark, 560 P.2d at517. The Workers' Compensation Court correctly found that claimant was entitled totemporary totalbenefits from the date of the improper termination to the date of 

### its order for the failure of the carrier to comply with section 39-71-609 MCA. 

### The carrier contends that even if the notice of termination was improper, that claimant had waived her right to notice. This contention 

### iswithout 

### merit. "No agreement by 

### [claimant] towaive any rights under this chapter for an injury tobe received shall be valid." Section 39-71-409 MCA

# . Furthermore, notice 

### is also required tobe given tothe division under section 39-71-609 MCA. 

### There is 

### no evidence before this Court to indicate that the Division waived its 

### right tonotice. The carrier questions whether theWorkers1Compensation Court can aggregate earnings from two separate and unrelatedemployments for the purpose of determining benefits payable. This Court has recently approved the aggregation of wages from separate and unrelated employments. Walker v. H. F. Johnson, Inc. (19781, Mont. 

## , 591 P.2d 181, 35

Finally, the carrier objects to an award of attorney fees. Section 39-71-612 MCA provides that if: 

# ".

. 

# . controversy relates tothe amount of compensation due and the settlement or award 

### is greater than the amount paid or tendered by the employer or insurer, a reasonable attorney's fee as established by the division or the workers' compensation judge if the case has gone toa hearing, based solely upon the differencebetween the amount settled for or awarded and the amount tendered orpaid, may be awarded inaddition to the amount of compensation.

### " Further, "[tlhefinding that claimant 

### is entitled to section 92-703.1 [now section 39-71-703 MCA] benefits triggers section 92-618 [now section 39-71-612 MCA] entitling claimant to 

## '.



# . . a reasonable attorney's fee as establishedby the division orworkmen's compensation judge



# ... 1 11 Walker, 591 P.2d at185. Claimant clearly fitsintoboth of the above situations. There 

### is alsonothing to indicate that the compensation judge deviated from the formula set outinsection 39- 71-613 MCA. The judgment of theWorkers' Compensation Court 

### is a£ firmed.



## t Justice /'

### We concur: 

# 7Adb4

# wadq

Chief Justice



# \.-:)i,.- 

# tt \L~~L-/ Justices